1. The author of the
communication is Ms. Auli Kivenmaa, a Finnish citizen and Secretary-General
of the Social Democratic Youth Organization. She claims to be a victim of a
violation by Finland of articles 15 and 19, alternatively, article 21, of
the International Covenant on Civil and Political Rights. She is represented
by counsel.

The facts:

2.1 On 3 September 1987,
on the occasion of a visit of a foreign head of State and his meeting with
the president of Finland, the author and about 25 members of her
organization, amid a larger crowd, gathered across from the Presidential
Palace where the leaders were meeting, distributed leaflets and raised a
banner critical of the human rights record of the visiting head of State.
The police immediately took the banner down and asked who was responsible.
The author identified herself and was subsequently charged with violating
the Act on Public Meetings by holding a "public meeting" without prior
notification.

2.2 The above-mentioned
Act on Public Meetings has not been amended since 1921, nor upon entry into
force of the Covenant. Section 12(1) of the Act makes it a punishable
offence to call a public meeting without notification to the police at least
six hours before the meeting. The requirement of prior notification applies
only to public meetings in the open air (section 3). A meeting is not public
if only those with personal invitations can attend (section 1(2)). Section
1(1) provides that the purpose of a "meeting" is to discuss public matters
and to make decisions on them. Section 10 of the Act extends the requirement
of prior notification to public ceremonial processions and marches.

2.3 Although the author
argued that she did not organize a public meeting, but only demonstrated her
criticism of the alleged human rights violations by the visiting head of
State, the City Court, on 27 January 1988, found her guilty of the charge
and fined her 438 markkaa. The Court was of the opinion that the group of 25
persons had, through their behaviour, been distinguishable from the crowd
and could therefore be regarded as a public meeting. It did not address the
author's defence that her conviction would be in violation of the Covenant.

2.4 The Court of Appeal,
on 19 September 1989, upheld the City Court's decision, while arguing, inter
alia, that the Act on Public Meetings, "in the absence of other legal
provisions" was applicable also in the case of demonstrations; that the
entry into force of the Covenant had not repealed or amended said Act; that
the Covenant allowed restrictions of the freedom of expression and of
assembly, provided by law; and that the requirement of prior notification
was justified in the case because the "demonstration" was organized against
a visiting head of State.

2.5 On 21 February 1990
the Supreme Court denied leave to appeal, without further motivation.

The complaint:

3. The author denies
that what took place was a public meeting within the meaning of the Act on
Public Meetings. Rather, she characterizes the incident as an exercise of
her right to freedom of expression, which is regulated in Finland by the
Freedom of the Press Act and does not require prior notification. She
contends that her conviction was, therefore, in violation of article 19 of
the Covenant. She alleges that the way in which the courts found her actions
to come within the scope of the Act on Public Meetings constitutes ex
analogia reasoning and is, therefore, insufficient to justify the
restriction of her right to freedom of expression as being "provided by law"
within the meaning of article 19, paragraph 3. Moreover, she contends that
such an application of the Act to the circumstances of the events in
question amounts to a violation of article 15 of the Covenant (nullum crimen
sine lege, nulla poena sine lege), since there is no law making it a crime
to hold a political demonstration. The author further argues that, even if
the event could be interpreted as an exercise of the freedom of assembly,
she still was not under obligation to notify the police, as the
demonstration did not take the form of a public meeting, nor a public march,
as defined by the said Act.

The State party's observations
on admissibility and the author's comments thereon:

4.1 By submission of 21
December 1990 the State party concedes that, with regard to the author's
complaint against her conviction, all available domestic remedies have been
exhausted.

4.2 As to the issue of
whether or not the relevant provision of the Public Meetings Act was
applicable in the author's case, the State party submits that it is a
question of evidence. The State party points out that the author does not
contend that said provision conflicts with the Covenant, only that its
specific application in her case violated the Covenant.

5. In her comments on
the State party's submission, the author reiterates that not only
convictions based on the retroactive application of criminal laws, but also
those on analogous application of criminal law, violate article 15 of the
Covenant.

The Committee's admissibility
decision:

6.1 During its
forty-fourth session, the Committee considered the admissibility of the
communication. It observed that domestic remedies had been exhausted and
that the same matter was not being examined under another procedure of
international investigation or settlement.

6.2 On 20 March 1992, the
Committee declared the communication admissible in so far as it might raise
issues under articles 15, 19 and 21 of the Covenant. In its decision, the
Committee requested the State party to clarify whether there was any
discrimination between those who cheered and those who protested against the
visiting head of State, in particular, whether any other groups or subgroups
in the larger crowd, who were welcoming the visitinghead of State, also
distributed leaflets or displayed banners, whether they gave prior
notification to the police pursuant to the Act on Public Meetings, and, if
not, whether they were similarly prosecuted.

The State party's submission on
the merits and the author's comments thereon:

7.1 The State party, by
submission of 14 December 1992, refers to the questions put to it by the
Committee and states that, on 3 September 1987, there was only a small crowd
of people assembled in front of the Presidential Palace; besides the
author's group, there were journalists and some curious passers-by. Except
for the author and her friends, no other group or subgroup which could be
characterized as demonstrators, distributing leaflets or displaying banners,
was present. No other groups had given prior notification to the police of
their intent to hold a public meeting.

7.2 The State party
recalls that article 19 of the Covenant gives everyone the right to hold
opinions without interference and the right to freedom of expression, but
that, under paragraph 3 of the provision, the exercise of these rights may
be subject to certain restrictions as are provided by law and are necessary
for respect of the rights and reputations of others, or for the protection
of national security or of public order (ordre public), or of public health
and morals. The State party also recalls that the Constitution of Finland
protects every citizen's freedom of speech and freedom to publish, and that
the exercise of these freedoms is regulated by law, in accordance with the
Constitution. The State party submits that, although the wording of the
Constitution concentrates on freedom of the press, it has been interpreted
broadly so as to encompass freedom of expression as protected by article 19
of the Covenant. In this context, the State part The State party submits
that the right to freedom of expression may be restricted by the
authorities, as long as these restrictions do not affect the heart of the
right. With regard to the present case, the State party argues that the
author's freedom of expression has not been restricted. She was allowed
freely to express her opinions, for instance by circulating leaflets, and
the police did not, after having received information about the organizer of
the public meeting, hinder the author and her group from continuing their
activities. The State party therefore denies that the Act on Public Meetings
was applied ex analogia to restrict the right to freedom of expression.

7.4 In this context, the
State party argues that a demonstration necessarily entails the expression
of an opinion, but, by its specific character, is to be regarded as an
exercise of the right of peaceful assembly. In this connection, the State
party argues that article 21 of the Covenant must be seen as lex specialis
in relation to article 19 and that therefore the expression of an opinion in
the context of a demonstration must be considered under article 21, and not
under article 19 of the Covenant.

7.5 The State party agrees
with the author that in principle article 15 of the Covenant also prohibits
ex analogia application of a law to the disadvantage of a person charged
with an offence. It argues, however, that in the present case the author was
not convicted of expressing her opinion, but merely of her failure to give
prior notification of a demonstration, as is required by article 3 of the
Act on Public Meetings.

7.6 With regard to the
author's allegation that she is a victim of a violation of article 21 of the
Covenant, the State party recalls that article 21 allows restrictions on the
exercise of the right to peaceful assembly. In Finland, the Act on Public
Meetings guarantees the right to assemble peacefully in public, while
ensuring public order and safety and preventing abuse of the right of
assembly. Under the Act, public assembly is understood to be the coming
together of more than one person for a lawful purpose in a public place that
others than those invited also have access to. The State party submits that,
in the established interpretation of the Act, the Act also applies to
demonstrations arranged as public meetings or street processions. Article 3
of the Act requires prior notification to the police, at least six hours
before the beginning of any public meeting at a public place in the open
air. The notification must include information on the time and place of the
meeting as well as on its organizer. Article 12, paragraph 1, of the Act
makes it a punishable offence to call a public meeting without prior
notification to the police. The State party emphasizes that the Act does not
apply to a peaceful demonstration by only one person.

7.7 The State party
explains that the provisions of the Act have been generally interpreted as
also applying to public meetings which take the form of demonstrations. In
this connection, the State party refers to decisions of the Parliamentary
Ombudsman, according to which a prior notification to the police should be
made if the demonstration is arranged at a public place in the open air and
if other persons than those who have personally been invited are able to
participate. The State party submits that the prior notification requirement
enables the police to take the necessary measures to make it possible for
the meeting to take place, for instance by regulating the flow of traffic,
and further to protect the group in their exercise of the right to freedom
of assembly. In this context, the State party contends that, when a foreign
head of State is involved, it is of utmost practical importance that the
police be notified prior to the event.

7.8 The State party argues
that the right of public assembly is not restricted by the requirement of a
prior notification to the police. In this connection, it refers to
jurisprudence of the European Court of Human Rights. The State party
emphasizes that the prior notification is necessary to guarantee the
peacefulness of the public meeting.

7.9 As regards the
specific circumstances of the present case, the State party is of the
opinion that the actual behaviour of the author and her friends amounted to
a public meeting within the meaning of article 1 of the Act on Public
Meetings. In this context, the State party submits that, although the word
"demonstration" is not expressly named in the Act on Public Meetings, this
does not signify that demonstrations are outside the scope of application of
the Act. In this connection, the State party refers to general principles of
legal interpretation. Furthermore, it notes that article 21 of the Covenant
does not specifically refer to "demonstrations" as a mode of assembly
either. Finally, the State party argues that the requirement of prior
notification is in conformity with article 21, second sentence. In this
context, the State party submits that the requirement is prescribed by law,
and that it is necessary in a democratic society in the interests of
legitimate purposes, especially in the interest of public order.

8.1 The author, by
submission of 28 April 1993, challenges the State party's description of the
facts and refers to the Court records in her case. According to these
records, witnesses testified that approximately one hundred persons were
present on the square, among whom were persons welcoming the foreign head of
State and waving miniature flags; no action was taken by the police against
them, but the police removed the banner displayed by the author and her
friends. According to the author, this indicates that the police interfered
with her and her friends' demonstration because of the contents of the
opinion expressed, in violation of article 19 of the Covenant.

8.2 The author further
challenges the State party's contention that the police did not hinder the
author and her group in the expression of their opinion. She emphasizes that
the entrance of the foreign head of State into the Presidential Palace was a
momentary event, and that the measures by the police (taking away the banner
immediately after it was erected and questioning the author) dramatically
decreased the possibilities for the author to express her opinion
effectively.

8.3 As regards the alleged
violation of article 15 of the Covenant, the author refers to her earlier
submissions and maintains that applying ex analogia the Act on Public
Meetings to a demonstration such as the one organized by the author is in
violation of article 15 of the Covenant. In this context, the author submits
that the State party's argument that article 21 of the Covenant does not
include a reference to demonstrations either is irrelevant, since article 15
only prohibits analogous interpretation to the disadvantage of an accused in
criminal procedures.

8.4 The author challenges
the State party's contention that it should have been evident to the author
that she was under obligation to notify the police of the demonstration. The
author argues that this was only firmly established by the Court's decision
in her own case, and that the general interpretation to which the State
party refers is insufficient as basis for her conviction. The author finally
submits that the description of a public meeting, within the meaning of
article 1 of the Act, used by the State party is unacceptably broad and
would cover almost any outdoor discussion between at least three persons.

8.5 In conclusion, the
author states that she does not contest that restrictions on the exercise of
the right of peaceful assembly may be justified, and that prior notification
of public meetings is a legitimate form of such restrictions. However, the
author does challenge the concrete application of the Act on Public Meetings
in her case. She contends that this outdated, vague and ambiguous statute
was used as the legal basis for police interference with her expressing
concern about the human rights situation in the country of the visiting head
of State. She claims that this interference was not in conformity with the
law nor necessary in a democratic society within the meaning of article 21
of the Covenant. In this connection, it is again stressed that, by taking
away the banner, the police interfered with the most effective method for
the author to express her opinion.

Issues and proceedings before
the Committee:

9.1 The Human Rights
Committee has considered the present communication in the light of all the
information made available to it by the parties, as provided in article 5,
paragraph 1, of the Optional Protocol.

9.2 The Committee finds
that a requirement to notify the police of an intended demonstration in a
public place six hours before its commencement may be compatible with the
permitted limitations laid down in article 21 of the Covenant. In the
circumstances of this specific case, it is evident from the information
provided by the parties that the gathering of several individuals at the
site of the welcoming ceremonies for a foreign head of State on an official
visit, publicly announced in advance by the State party authorities, cannot
be regarded as a demonstration. Insofar as the State party contends that
displaying a banner turns their presence into a demonstration, the Committee
notes that any restrictions upon the right to assemble must fall within the
limitation provisions of article 21. A requirement to pre-notify a
demonstration would normally be for reasons of national security or public
safety, public order, the protection of public health or morals or the
protection of the rights and freedoms of others. Consequently, the
application of Finnish legislation on demonstrations to such a gathering
cannot be considered as an application of a restriction permitted by article
21 of the Covenant.

9.3 The right for an
individual to express his political opinions, including obviously his
opinions on the question of human rights, forms part of the freedom of
expression guaranteed by article 19 of the Covenant. In this particular
case, the author of the communication exercised this right by raising a
banner. It is true that article 19 authorizes the restriction by the law of
freedom of expression in certain circumstances. However, in this specific
case, the State party has not referred to a law allowing this freedom to be
restricted or established how the restriction applied to Ms. Kivenmaa was
necessary to safeguard the rights and national imperatives set forth in
article 19, paragraph 2(a) and (b) of the Covenant.

9.4 The Committee notes
that, while claims under article 15 have been made, no issues under this
provision arise in the present case.

10. The Human Rights
Committee, acting under article 5, paragraph 4, of the Optional Protocol to
the International Covenant on Civil and Political Rights, is of the view
that the facts before it disclose a violation of articles 19 and 21 of the
Covenant.

11. Pursuant to article 2
of the Covenant, the State party is under an obligation to provide Ms. Auli
Kivenmaa with an appropriate remedy and to adopt such measures as may be
necessary to ensure that similar violations do not occur in the future.

12. The Committee would
wish to receive information, within ninety days, on any relevant measures
taken by the State party in respect of the Committee's Views.

The text of an individual
opinion from Mr. K. Herndl is appended to the Views.

Appendix

Individual opinion by Mr. Kurt
Herndl (dissenting)

1. While I did (and do)
agree with the Committee's decision of 20 March 1992 to declare the present
communication admissible in as much as the facts reported might raise issues
under articles 15, 19 and 21 of the Covenant, I am regrettably unable to go
along with the Committee's substantive decision that in the present case
Finland has violated articles 19 and 21. The reason for this is that I do
not share at all the Committee's legal assessment of the facts.

A. The question of a
possible violation of article 21

2.1 The Committee's
finding, that by applying the 1907 Act on Public Meetings (hereinafter
called the 1907 Act) to the author - and ultimately imposing a fine on her
in accordance with Section 12 of the Act - Finland has breached article 21
of the Covenant, is based on an erroneous appreciation of the facts and,
even more so, on an erroneous view of what constitutes a "peaceful assembly"
in the sense of article 21.

2.2 In the first sentence
of paragraph 9.2 of its Views the Committee rightly observes that "a
requirement to notify the police of an intended demonstration in a public
place six hours before its commencement may be compatible with the permitted
limitation laid down in article 21 of the Covenant". A mere requirement, as
contained in the 1907 Act, to notify a public meeting to the authorities
several hours before it starts, is obviously in line with article 21 of the
Covenant which provides for the possibility of legitimate restrictions on
the exercise of the right to peaceful assembly "in conformity with the law
and which are necessary in a democratic society in the interests of national
security or public safety, public order (ordre public), the protection of
public health or morals of the protection of the rights and freedoms of
others". The 1907 Act certainly falls in this category. This is, by the way,
admitted by the author herself who asserts that she does not contest that
restrictions on the exercise of the right to peaceful assembly may be
justified, and that prior notification of public meetings is a legitimate
form of such restrictions (see paragraph 8.5 of the Views). In her last
communication she explicitly states that she is not challenging the validity
of the 1907 Act in abstracto either.

2.3 The legal issue
therefore centres on the question whether the author's actions - the fact
that she "and about 25 members of her organization, amid a large crowd,
gathered ..., distributed leaflets and raised a banner" (see paragraph 2.1
of the Views) - ought or ought not to be qualified as a "public meeting" in
the sense of the 1907 Act or, for that matter, as a "peaceful assembly" in
the sense of article 21 of the Covenant.

2.4 In that respect the
Committee observes in paragraph 9.2 (second sentence) of its Views that "it
is evident from the information provided by the parties that the gathering
of several individuals at the site of the welcoming ceremonies for a foreign
head of State on an official visit, publicly announced in advance by the
State party authorities, cannot be regarded as a demonstration". I am, much
to my regret, not able to follow this reasoning.

2.5 It is not contested by
the author that she and a group of people of her organization summoned by
her, went to the Presidential Palace explicitly for the purpose of
distributing leaflets and raising a banner and thus to publicly denounce the
presence, in Finland, of a foreign Head of State whose human rights record
they criticized. If this does not constitute a demonstration, indeed a
public gathering within the scope of article 21 of the Covenant, what else
would constitute a "peaceful assembly" in that sense, and, accordingly, a
"public meeting" in the sense of the 1907 Act?

2.6 In his commentary on
article 21 of the Covenant Manfred Nowak states the following:

"The term 'assembly' ('réunion')
is not defined but rather presumed in the Covenant. Therefore, it must be
interpreted in conformity with the customary, generally accepted meaning in
national legal systems, taking into account the object and purpose of this
traditional human right. It is beyond doubt that not every assembly of
individuals requires special protection. Rather, only intentional, temporary
gatherings of several persons for a specific purpose are afforded the
protection of freedom of assembly".

2.7 This is exactly the
case with the author's manifestation in front of the Presidential Palace.
The decisive element for the determination of an "assembly" - as opposed to
a more or less accidental gathering (e.g. people waiting for a bus,
listening to a band, etc.) - obviously is the intention and the purpose of
the individuals who come together. The author is stopped from arguing that
she (and her group) were bystanders like the other crowd who was apparently
attracted by the appearance of a foreign Head of State visiting the
President of Finland. She and her group admittedly joined the event to make
a political demonstration. This was the sole purpose of their appearing
before the Presidential Palace. The State party, therefore, rightly stated,
that this was "conceptually" a demonstration.

2.8 Nor can I follow the
Committee's argument in 9.2 (4th and 5th sentences) where an attempt is made
to create a link between the purpose (and thus the legality) of the
restrictive legislation as such and its application in a concrete case. To
say that "a requirement to pre-notify a demonstration would normally be for
reasons of national security etc ..." and then to continue "[C]onsequently,
the application of the Finnish legislation on demonstrations to such a
gathering cannot be considered as an application of a restriction permitted
by article 21 of the Covenant" is, to say at least, contradictory.

2.9 If the restricting
legislation as such - in the present matter the 1907 Act on Public Meetings
- is considered as being within the limits of article 21 (a fact not
contested by the author and recognized by the Committee) the relevant law
must obviously be applied in an uniform manner to all cases falling under
its scope. In other words: If the 1907 Act and the obligation therein
contained to notify any "public meeting" prior to its commencement, is
avalid restriction on the exercise of the right to assembly, permitted under
article 21 of the Covenant, then its formal application cannot be considered
as a violation of the Covenant, whatever the actual reasons (in the mind of
the authorities) for demanding the notification.

2.10 The Finnish
authorities, therefore, did not violate article 21 of the Covenant by
insisting that the author address an appropriate notification to the
authorities prior to her demonstrating in front of the Presidential Palace
and by fining her subsequently for not having made such a notification. In
objective terms, it would have been easy for the author to comply with the
requirement of a simply notification. No reason has ever been induced by her
for not doing so, except for her arguing ex post facto that she was not
required to notify because her action did not fall under the 1907 Act. She
seems to have deliberately chosen to disregard the provisions of the Act,
and accordingly had to bear the consequences, i.e. the imposition of a fine.

B. The question of a possible
violation of article 19

3.1 In paragraph 9.3 of
its Views the Committee emphasizes that the author exercised her right to
freedom of expression by waiving a banner. As the banner was removed by the
police the Committee concludes that this violated article 19.

3.2 Surely, one will have
to place the removal of the banner in the context of the whole event: the
author and her group "demonstrate". They distribute leaflets, they waive a
banner. The police intervenes in order to establish the identity of the
person leading the demonstration (i.e. the "convener" of a public meeting
under the 1907 Act). The banner is "taken down" by the police (see paragraph
2.1 of the Views). However, the demonstration is allowed to continue. The
author herself and her group go on to distribute their leaflets and
presumably give vent in public to their opinion concerning the visiting Head
of State. There is not further intervention by the police. Hence, the
"taking down" of the banner is the only fact to be retained in view of a
possible violation of article 19.

3.3 The Committee has
opted for a very simple façon de voir: Take away the banner and you
necessarily violate the right to freedom of expression. This view does not
take into account the intimate and somewhat complex relationship between
articles 19 and 21 and, for that matter, also article 18 of the Covenant.

3.4 The right of peaceful
assembly would seem to be just one facet of the more general right to
freedom of expression. In that regard John P. Humphrey in his analysis of
"political and related rights" states as follows:

"There would hardly be freedom
of assembly in any real sense without freedom of expression; assembly is
indeed a form of expression".

3.5 If, therefore, there
are in force in any given State party, legal norms on the right to assembly
which are in conformity with article 21 of the Covenant, including
restrictions of that right which are permitted under that article, such
legislation will apply to a public meeting or peaceful assembly rather than
legislation on the exercise of freedom of expression. In that sense the
observation by the Government of Finland that article 21 must be seen as lex
specialis in relation to article 19 (see paragraph 7.4 of the Views) is
correct. In that regard I should like to refer to the relevant portion of
the Government's submission which reads as follows:

"... this means that article 19
is to be regarded, in any case, as a lex generalis in relation to article 21
(lex specialis), thus excluding the need for separate consideration under
the former article".

It is regrettable that the
Committee, in its Views, did not address this legal problem but contented
itself with the somewhat oversimplified statement that just by removing the
displayed banner, the Government violated the author's right to freedom of
expression. Would the Committee still have found a violation of article 19
if it had found no violation of article 21? Hardly.

C. The question of a
possible violation of article 15:

4.1 Although the
Committee, in its admissibility decision of 20 March 1992, clearly retained
article 15 among the articles which might have been violated by the
Government of Finland, it completely failed to address the issue of article
15 in its final Views. This is all the more surprising as the author in all
her submissions including her last rejoinder, had again and again emphasized
that her being fined by the Helsinki City Court (on the basis of Section 12
of the 1907 Act) was tantamount to a retroactive application, by analogy, of
criminal law. While this argument may be considered on the surface as rather
subtle, it is contradicted by the facts of the case.

4.2 The author was
convicted not for having expressed her political opinions in a specific way
but merely for her undisputed omission "to give the prior notification
required by Section 3 of the Act on Public Meetings for arranging a certain
kind of a public meeting, in her case a demonstration" (as submitted by the
State party). Even on the assumption, that applying the 1907 Act with regard
to the author's actions was erroneous, which, in turn, might have infringed
on the author's rights under article 21 of the Covenant, her conviction on
the basis of that same Act, can surely not be qualified as a "retroactive"
application of criminal law, forbidden by article 15 (nullum crimen, nulla
poena sine lege). Perhaps the Committee thought the argument too farfetched
and unreasonable. In any event, the Committee should have included in its
final Views a statement to the effect that in the present case Finland has
not violated article 15.